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New Clause 14 - Deportation on national security grounds: appeals

Part of Crime and Courts Bill [Lords] – in a Public Bill Committee at 10:45 am on 12th February 2013.

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Photo of Damian Green Damian Green The Minister for Policing and Criminal Justice, The Minister for Policing and Criminal Justice 10:45 am, 12th February 2013

I am happy to answer those two questions. The real risk of serious irreversible harm is the test used already by the European Court of Human Rights when deciding whether to issue a direction to suspend removal, so there is a body of case law for the right hon. Gentleman and others to consider. I hope he will accept that one of the virtues of using that test is precisely that it avoids the situation he described of people using the judicial system to play games; in particular, by using the Strasbourg Court test, we are seeking to minimise the opportunity for subjects to delay their removal by raising the issue in Strasbourg. He asked what the phrase means in practice; in particular, the test applies when there is a real risk of violation of article 2, on the right to life, or article 3, on prohibition of torture, of the European convention on human rights. That is what we regard as serious and irreversible harm. In a sense, that is reasonably straightforward.

The right hon. Gentleman also asked about the phrase “clearly unfounded”. To repeat partly what I said in my opening remarks, that is a well established test that was laid down in legislation in 2002, so we have 11 years of case law on what it means. Essentially, it means that a human rights claim will be clearly unfounded if it is not arguable in a court or if it is frivolous—as I say, we have 11 years of case law that establishes what that kind of frivolity is. There are a number of examples of cases that are thrown out by the courts at all times.

The right hon. Gentleman legitimately questioned the two phrases; however, neither is giving rise to any new concepts. Both cover complex issues, but those are not new for the courts: there is a body of case law at both European and national level covering the two concepts. I hope that satisfies him.